Disqualification and Resignation of a Company Secretary
All the companies must have at least one secretary, according to the Companies Act 2016. Thus, most of the companies may have engaged a corporate secretarial service in Johor Bahru during their incorporation. Just like other position held in a company, a secretary may lose his qualification, and he may resign too. Now, let us look at both cases.
An individual will lose his qualification as a company secretary if he goes bankrupt and is undischarged from the bankruptcy. He will also be disqualified if he is convicted no matter in or outside of Malaysia, or if he no longer holds a practising certificate that the Registrar has issued.
Apart from the conditions mentioned above, on some occasions, the Registrar may think that an individual did not act truthfully or failed to use due diligence when he holds the position as a company secretary. In such a scenario, the Registrar may ask the individual to provide reasons why it should not revoke his practising certificate or the reasons for not disqualifying him from being the company’s secretary.
If a person has been disqualified due to the conditions above, yet he continues acting as a company secretary (Also see Notifying the Particulars and Alterations in Company’s Director, Manager and Secretary) without the leave of Court, the individual as well as every director who allows such condition to happen knowingly commits an offence.
When a secretary wants to resign, according to the term of appointment and the company’s constitution, he may give notice to the Board. If he is unable to contact any of the company’s directors with the last known residential address, he may inform the Registrar about this matter and notify it about his intention to resign.
The secretary should stop holding the office as the company’s secretary on the expiry of 30 days from the day he lodged the notice, or the period stated in the terms of appointment or the company’s constitution if he gives the notice to the Board. If he informs the Registrar about his resignation as in the second situation mentioned above, he shall cease becoming the company’s secretary on the expiry of 30 days from the day he lodged the notice to the Registrar.
However, note that the resignation should not relieve the secretary (Also see Do Companies Need to Keep a Register of Directors, Managers and Secretaries?) from liability of any omission or act which are done before he resigns. The Board can remove the secretary from the position according to the company’s constitution or the terms of appointment. Apart from that, the company should keep in mind that they should not leave the office of secretary vacant for more than 30 days.